Do Ask, Do Tell: When Liberty Is Stressed: Updates to Bill of Rights Ii; Essays on Challenges to Free Speech and to Other Liberties

By Bill Boushka

As our culture has placed increasing importance on the individual, it may be time to consider reinforcing our rights. Individual liberties have recently come under severe stress; not only from the necessary war on terror but also from corporate misconduct and well-founded concerns about managing exploding technology, as well a more traditional questions about culture and family values.
Many of the affirmative protections in the original Bill of Rights are largely procedural. It would be well to list and review our fundamental rights with a conceptual bottom-up review. These rights would include psychological rights to express to others who we are as individuals and would invoke social rights to ensure basic fairness to all people.
How do we reinforce individual rights and, simultaneously, maintain stability. Security and social justice in our society? With many issues, the free market provides a much more dependable means of regulation than can government. But there are some areas where law is essential to maintain real freedom.
This book comprises ten essays about balancing individual liberties with increasing concerns about security and stability.

• Language: English
• Publisher: iUniverse
• Release date: Dec 15, 2002
• ISBN: 9781462074914

Bill Boushka

Bill Boushka is a libertarian activist and gay conservative freelance writer. He is the author of Do Ask, Do Tell: A Gay Conservative Lashes Back, and Our Fundamental Rights and How We Can Reclaim Them. Mr. Boushka was also involved in opposing the Child Online Protection Act in court.

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Contents

PREFACE

1:

THE WINDING ROAD TOWARD LIBERTY

2:

LAUNCHING A BILL OF RIGHTS II

3:

TERRORISM, INDIVIDUALISM, CIVIL LIBERTIES, AND LIBERTARIANISM: A PERSPECTIVE

4:

ON ITS FACE, CAN DON’T ASK, DON’T TELL REALLY BE CONSTITUTIONAL?

5:

OUR NEW DEBATE ON NATIONAL SERVICE AND THE DRAFT

6:

A TEMPERATE VIEW OF GAY CONSERVATISM: IS GAY CONSERVATIVE AN OXYMORON?

7:

NARCISSISM, AFFILIATION AND POLARITY

8:

THE INFORMATION TECHNOLOGY JOB MARKET: WHAT HAS HAPPENED AND WHAT WILL HAPPEN

9:

SELF-PUBLISHING: ETHICAL AND LEGAL TRENDS

10:

THE CHILD ONLINE PROTECTION ACT OF 1998 WOULD SUPPRESS FREE SPEECH AMONG ADULTS

APPENDIX 1:

AFFIDAVIT OF JOHN WILLIAM BOUSHKA IN ACLU V. RENO II, CHALLENGING THE CHILD ONLINE PROTECTION ACT (COPA)

APPENDIX 2:

OUTLINE FOR A CLASSROOM PRESENTATION OF FUNDAMENTAL RIGHTS

PREFACE

This book is primarily intended to update the vision in Do Ask, Do Tell: A Gay Conservative Lashes Back (1997, 2000) given the new challenges to liberty posed particularly by terrorism and now corporate scandals, as well as the growing understanding of the legal and ethical problems that accompany the opportunities for self-expression presented by the Internet.

In 1998 I wrote a short booklet, Our Fundamental Rights and How We Can Reclaim Them as a lay person’s conceptual guide to individual rights. This little work was intended as a high-level summary of the material in Do Ask, Do Tell. In 1999 I wrote a more formal proposal with an essay, Bill of Rights II, and that has been posted on my hppub.com website since then. In September 2002 I printed that essay in a monograph Bill of Rights 2 and Other Topics. This new book replaces that 2000 publication with a brief work that I believe necessary particularly in the aftermath of the 9-11-2001 tragedy.

The long essay on terrorism is intended to review the breach in the firewall between government and civil liberties, a barrier that I had spent these years proposing. The remaining essays explore various aspects of liberty and self-expression as they have evolved in the past few years. The chapter on the Child Online Protection Act (COPA), against which I am a litigant, discusses balancing Internet freedom of expression and protecting children. The discussion of self-publishing explores the potential ethical and legal problems as new writers and artists take advantage of the new technologies to express themselves while bypassing many of the old obstacles. The discussion of information technology, in which I spent most of my professional career, explores the changes in workplace economic security that would be essential to freedom. The essay on narcissism is one of the most often visited on my web domain and pins down the psychological issues of new expressive freedoms.

This book is structured as an anthology of stand-alone essays that may be read in any order. Some material may be repeated among the essays. Therefore no major attempt in editing has been made to force the essays to fit into one single-threaded argument.

As I have indicated on my hppub website, I am interested in collaborating with other writers and publishers to produce a larger work dealing with the balancing of civil liberties with national security and general welfare. Such a work should objectively examine practical, military, legal and constitutional questions involved in striking this balance in a systematic, well-organized manner, and would be a compelling item for any reader concerned about this balance. This short book stresses the areas in which I have my own targeted comments and knowledge. The issue is grave and not one that simply yields to propaganda on one side or the other.

I should mention my use of the phrase Do Ask, Do Tell in the title. As of this writing, no other published book that I can find starts with this title. Various web sites have mentioned it in connection with such subjects as psychological counseling, talk shows, local history, and particularly AIDS and STD prevention. It seems likely to me that the phrase would appeal to a studio as a film title. There was one attempt to trademark this phrase in the middle 1990s for use in selling memorabilia, book-promotion materials and clothing; but that attempt was abandoned. I do not believe that this phrase, because of its common use and political connotation, is appropriate for strong commercial branding in the sense usually required by trademark law.

In the event of a website domain-name change in the future, materials on hppub.com will be found on johnwboushka.com.

Bill Boushka Minneapolis, MN August 2002

1:

THE WINDING ROAD TOWARD LIBERTY

On a chilly Thanksgiving Friday in 1995, I entertained myself with a pleasant geological analogy as I drove US-29 from Arlington to Charlottesville to visit Monticello. If you map a day to five years of elapsed time, our political system was about like the East Coast in February just after a deep low forms in south Texas. You have a pretty good chance of a massive Nor’easter perfect snowstorm two days later. And, I thought, some kind of constitutional crisis (dwarfing Watergate) in a decade or so seemed inevitable. In a time of unusual prosperity brought about by technological change, we found ourselves squabbling about the most basic individual rights at the deepest psychological levels.

I have argued in my two previous books that the firewall between government and citizens needs to be strengthened to protect individual rights in all kinds of areas, such as the military, family values, gay issues, civil asset forfeitures, self-defense and free speech. I have suggested that some kind of constitutional amending process, perhaps a series of public town halls, would eventually become inevitable. At the same time I have proposed that moral values be cast in an extended notion of personal accountability or authentication rather than in group-based remedies. I believe that my first self-published book did stimulate a lot of debate on the more subtle areas of moral perspective and on the role of government in implementing morality, as other authors’ books, particularly those on family values, became more detailed.

In September 2000 I published a monograph of putatively final set of do ask, do tell essays, the most important of which is a moderately deliberate explanation of how a Bill of Rights II (effectively proposed in Chapter 6 of Do Ask, Do Tell and in all of Our Fundamental Rights) could come about. Then a new theme for the twenty-first century was suddenly announced with the violent, tragic, even apocalyptic events of September 11, 2001.

We have a feral, viral enemy that seems diabolical enough to use the opportunities of our own technological society—particularly those related to mobility, communication and self-expression—to destroy our modern world by clandestine and asymmetric attacks from within. This particular adversary stresses religion and an intolerant fundamentalist mentality (denying peaceful coexistence) that, in its nihilistic hatred first of Jews and then apparently of all of western modernism, remarkably parallels the hatred of gays (and other groups) by Christian religious extremists in our own country, an observation now even conceded by our own conservative Bush administration.

Sometimes the enemy appears almost surreal, as if it had first wanted to set up a closed alien society and separate itself in Star Wars fashion on another planet. The mode of warfare seems novel to us, although it had been seen centuries before our modern state system evolved; and, for that matter, in Vietnam our country had learned that technological superiority does not always easily defeat an underground, agile guerilla opponent. Any consideration of history during the preceding decades shows a gradual accumulation of clues that this kind of new warfare was possible.

When I authored the first Do Ask Do Tell book and placed so much attention upon both the draft and gays in the military (and their possible future nexus) I focused much of my own thinking on the truism that individual self-expressive freedom can never be taken for granted and invokes responsibilities to participate in freedom’s defense; but I saw the major threats as likely to derive from a resurgence of communism or excess nationalism in Russia or even from neo-Nazism, as in the recent film (and Tom Clancy novel), The Sum of All Fears. Certainly our own domestic terrorists sometimes relate to a Nazi-like world-view, which has some major psychological differences from militant Islamic radicalism.

The other major exposure to thinking about a major societal calamity for me had come with the AIDS epidemic in the 1980s. At least in the earlier days of the epidemic, the idea that the forthcoming public health catastrophe could undermine social order and civil liberties deserved serious thought. Now we see the same kind of thinking when we contemplate bio-terrorism.

So, in presenting my material, I must deal with a bifurcation. I would deal first with the principles underlying the Bill of Rights and how we should publicly review them. But then we must review all the security measures that we now need in view of the cost they may impose on civil liberties. This discussion goes beyond mechanical dissections of constitutional law. It must bring us back to thinking about what our freedom is really for and when our expectations are no longer legitimate. Frankly, we have to discuss the grim scenario of future major attacks and infrastructure breakdown, and how we would view liberty in such a world. It has happened before.

Once more, I backpeddle a bit. Over many years I noticed a trend, first with gay issues and then with most other policy problems, that beleaguered people—sometimes self-appointed victims—would use government to make them more comfortable in their own circumstances at the expense of the rights and freedom of others who were doing them no direct harm. This made me mad! After all, the political process, even democracy at its best, has generally dealt with people in groups defined by nationality, race, religion, age, handicapped or medical status, gender, even sexual orientation. For the most part, groupthink is the only kind of politics that we know.

And yet, the emergence of a technological society has given much more capability to the individual regardless of his affiliations. The last half of the twentieth century has marked an unprecedented growth in individualism for the person of average means. So it becomes natural to redirect public policy towards the notion of individual responsibility. We see increased attention to questions of what people deserve in terms of their own abilities and accomplishments, especially in the modern workplace.

But culturally we are very divided over the increase of individualism. After all, a philosophy of individualism, so fundamental to libertarianism, can have terrible consequences for people who fail. Individuals can be left out in the cold even when they didn’t start at the same place in line. Individualism (and the associated market fundamentalism, as George Soros calls it, in The Crisis of Global Capitalism¹) seems to contradict religious faith, to amplify social injustices or disrupt the family socialization (especially of men) that is so important both for the raising of children and the care of the elderly. Other philosophies centered on religion or communitarianism continue to be expressed. So the idea that government, through the democratic process, may force some sacrifice upon citizens at an individual level for the good of all of us still holds a lot of weight.

The experience of individualism becomes even more complicated when it confounds family values. Since the Vietnam era we have, as a people, become increasingly divided over the importance of family and children as a primary source of personal identity—whether one can and should be one’s own person regardless of familial relationships. And some people do not tolerate the tension over these issues well. Gay rights has, in psychological terms, become for some people an exercise in tolerating the competition and psychological distraction provided by people whose values at least appear to be so narcissistic, effete, aesthetic and ultimately (and paradoxically) hierarchal and exclusionary. Associated free speech has sometimes come to be viewed as a self-promoting indulgence.

After all, for so many people, family and parenting—very reproducible experiences for almost anyone willing to take a dive—do constitute real life and make external exercises like politics (or for that matter many kinds of conventional success) extraneous (let alone hedonistic). Yet to really be free, whether to experience ourselves through family or through other individual private choices, we need to shake the grip of government and special interests that find government a convenient way to gain advantage over others. We need to reduce the power of organizations that control the media and oversimplify the arguments that finally reach the people. And reducing government and reducing institutionalism itself requires a political exercise, maybe even a constitutional one.

The controversies around lesbians and gay men have become a defining test of the course of individualism. Some people on the far left want to treat gays as another minority group, with no real discussion of behavior and values. And some demagogues on the far right seem determined to re-cement the status of gays as second-class and even subservient citizens as a matter of law.

Both sides seem afraid of a real, chess-game-like sharp debate over the idea that individuals may exercise their own values in the choice of consenting significant others, and especially about the logical consequences of almost any rigid social doctrine with respect to the self-esteem of the disadvantaged. After all, some people hide behind their marriages, relationships, faiths, and other associations. I want to be treated exactly equal to everyone else in the law, and be able to defend my values and abilities in the free market. But traditional gay activism has sometimes seemed resigned to conceding legal inferiority (for those who can’t or don’t sexually practice heterosexual marriage) in some areas, especially those perceived as social obligations (like the military, marriage and parenting) in order to get limited discrimination and hate crimes protection (relief) in other areas, an intellectually dishonest endeavor. The modern debates over the past ten years on gays in the military, same-sex marriage and gay parenting may indicate a real sea change. We may finally recognize that political protection of private choices alone is not enough and that equal rights and equal social responsibility may well go hand in hand.

It is possible to confuse knee-jerk homophobia, derived directly from fear of male failure in penetrative sexual performance, with a certain philosophical viewpoint that runs underneath homophobia but remains poorly articulated. Homosexuals (particularly men) and the politicians helping them are denying the obvious problems with homosexual conduct and values (and deliberately hiding these problems within a dubious notion—object—of immutability). These problems include an unpredictable downstream hazard to public health, an evasion of the gender-related obligations that any civilization must demand, and a narcissistic value system that logically implies that people, once they can no longer take care of themselves or particularly turn others on should go out in the cold to die, like mice seeking water after eating poison.

One particularly disturbing interpretation of the Oscar Wilde view of homosexuality, with its emphasis on youth, is that fantasy-like aestheticism may, if run amok, lead to an almost Nazi-like disdain or contempt for those individuals who don’t have it. All of this is stated in the subjunctive. One could make the same comments about a lot of heterosexual society, and one could rebut these points.

In fact, as a younger man I tremendously resented the automaticity of the heterosexual family and the way that the family seemed like a convenient cover for men who had let themselves go but who somehow expected reward for biological competence in heterosexual performance and subsequent lineage. But what bridges obligation to responsible private choice seems, to many people, to be the proper direction of sexual energy or imagination and personal motivation (what makes you tick) into the nuclear agape-loving family; otherwise obligations really become burdens, life-defining sacrifices, and exercises in paying your dues. The other big bridge, of course, would be religious faith—when construed as a humility about approaching one’s own purposes in the face of God’s will (and when perceived as a way out of confounding, labyrinthine rational debate or out of taking full responsibility for one’s own troubles).

The story of the last fifty years is the gradual deregulation of the individual psyche. Increased personal responsibility must go with that, and this responsibility may well include proving that one can take care of others. The new individualism allows more expressive private choice including sexual choice. It demands more inflexible personal accountability and still recognizes common social obligations as spontaneously ordered rules. New individualism also recognizes that there must be limits on the rightful prerogatives of any specific other person to tell an individual what he owes, lest all the old corruptions of power and bureaucracy return.

The moral questions around individualism, faith, community and family still remain, however. Perhaps we will still reach a cultural understanding that every adult ought to prove that he (or she) can take care of other(s) besides himself. Ironically we will need to get government out of the way to realize this, and to help people see past the surface narcissism of some gay values. President Bush said, when addressing Ohio State at a commencement ceremony, A person without responsibility for others is a person who is truly alone. We must develop this understanding, if individualism is not some day to undermine our respect for life itself. Intellectuals disagree about the reach of individual understanding of cultural problems when attacking social problems with collective action. But responsible individualism implies developing this understanding and acting upon it. While freedom cannot be won or secured just by addressing the grievances of oppressed groups, neither can it be secured by a simplistic idea of individual harmlessness; freedom must deal with inequalities at the most personal levels. In order to limit the reach of government in these moral matters, we need a new debate on our constitutional rights. Senator John McCain puts things well when he says that individualism needs to find causes greater than the self.

Individualism, however, takes private choices public, because people tend to feel that their choices express who they are. That is why free speech issues have become so important to me since my original involvement with the military ban issue as an abrogation of a privacy right (for a servicemember or potentially conscripted civilian). The don’t ask, don’t tell policy for gays in the military now suggests that some people, like the early Christians, must publicly deny who they are in order to serve others. Therefore several of the items in this booklet (the COPA litigation discussion and the self-publishing discussion) are motivated by free speech.

And this debate must allow all arguments, including those that are politically incorrect, to be placed on the table. We must be willing to understand how others think and not run away from uncomfortable ideas by saying I don’t want to know. The threats from the outside world, as well as from some our own internal corruption, are real. We can lose it all. We must ask, and we must tell.

2:

LAUNCHING A BILL OF RIGHTS II

Part 1: Overview

At my hppub.com (High Productivity